Matthew Mason v. Clearlane Investments Inc. o/a The Quail and Firkin, 2012 HRTO 1767

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Mason

Applicant

-and-

Clearlane Investments Inc. o/a The Quail and Firkin

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: September 18, 2012

Citation: 2012 HRTO 1767

Indexed as: Mason v. The Quail and Firkin

WRITTEN SUBMISSIONS

Matthew Mason, Applicant

Self-represented

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex.

2The applicant alleges that in the respondent’s workplace, the positions of table servers and bartenders were filled by women. He alleges this discriminated against him on the basis of his gender because these positions earn higher tips than the position of busser, the job the applicant performed from May 2008 to February 2011. The applicant asserts women were placed in the positions of table servers and bartenders ahead of men who had better and more relevant experience.

3By Notice of Confirmation of Hearing dated May 1, 2012, the parties were advised the hearing in this matter was scheduled for November 9, 2012. The parties were further advised to file their witness lists and summaries, and the documents they intend to rely upon at the hearing, by September 25, 2012.

4On June 14, 2012, the applicant filed a Request for an Order During Proceedings (“Request for Order”) wherein he sought disclosure of the following documents from the respondent:

a. Records of Employment for all employees as far back as the records exist;

b. Employment records for all employees as far back as the records exist;

c. Employee work schedules as far back as the records exist;

d. Weekly sales figures by employee position for the period May 2008 to February 2011;

e. Tip and tip-out calculation records for all employees for the period May 2008 to February 2011.

5The applicant alleges these documents will show the gender of the person working in the particular positions and the wage and tip differential between the various positions.

6The respondent did not respond to the Request for Order.

7On August 31, 2012, the applicant filed a second Request for Order seeking an adjournment of the hearing for three months after any order requiring further disclosure from the respondent is made. He advised this additional time would allow the respondent to comply with the disclosure order and would give the applicant adequate time to analyse and present detailed financial and scheduling evidence at the hearing. The respondent did not respond to this second Request for Order.

8The respondent filed the documents it intends to rely upon at the hearing on May 23, 2012.

Applicant’s Request for Production

9It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

10In paragraphs 12 and 13 of McKay v.Toronto Police Services Board, 2009 HRTO 1220, 2009 HRTO 1220, the Tribunal held as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLII 46508 (ON HRT), 2002 CanLii 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

11The applicant alleges that he was discriminated against in his position of busser because he received less compensation in tips when compared to the tips received by the female employees working as table servers and bartenders. The applicant asserts further that being restricted to the busser position by reason of his gender made him feel devalued in the workplace.

12The applicant asserts bussers receive three percent of the sales figures of bartenders and table servers (the “tip-out”), compared to the eighteen percent received by bartenders and the fifteen percent received by table servers on their sales figures (the “tips”). Bussers receive a higher hourly wage than both table servers and bartenders.

13In light of the applicant’s allegation of discrimination regarding compensation, the first three categories of documents requested by the applicant are overly broad and are not arguably relevant to the issues in this case. The relevant time period for disclosure is the period of the applicant’s employment – May 2008 to February 2011. Furthermore, records of employment, employment records and employee work schedules will not show the tips earned in the various positions. While the gender of the employees in the various positions is relevant to the applicant’s allegation of discrimination, this information can be provided by the respondent in the form of a list of employees, with their names redacted, their positions and their gender.

14Documents relating to the calculation of tips and tip-outs are arguably relevant to the applicant’s allegation for the period of May 2008 to February 2011 because it goes to the applicant’s allegation that busser receive less in tips. I note that the respondent has not addressed this allegation in the Response. These documents will include employee weekly sales figures because that information is the basis upon which the tip-out is calculated, according to the information provided by the applicant. If these documents do not show the weekly sales figures by employee position, that information should be provided for the period May 2008 to February 2011.

15I order production of all documents relating to the calculation of tips and tip-outs for the period May 2008 to February 2011. These documents must be produced by the respondent by October 2, 2012. Copies should be filed with the Tribunal.

Adjournment

16The Tribunal’s Information Bulletin provides that adjournments will be granted only in extraordinary circumstances. The Information Bulletin states the following regarding requests for adjournments:

Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

17The applicant has not established extraordinary circumstances to grant the adjournment. The documents ordered disclosed from the respondent will be disclosed close to the date required for pre-hearing disclosure as set out in the Notice of Hearing. Given the limited production ordered, the applicant will have sufficient time to review the documents in order to prepare for the hearing on November 9, 2012.

18I will hear from the parties further during the course of the hearing as to the admissibility, reliability, relevance and weight with respect to any documents filed as part of the Tribunal’s process thus far and as a result of this Interim Decision.

ORDER

19The respondent is directed to produce all documents relating to the calculation of tips and tip-outs for the period May 2008 to February 2011. If these documents do not show the employee’s weekly sales figures, that information should be provided. The respondent is also ordered to provide a list of employees during this period, their positions and their gender. All employee names should be redacted from the information ordered disclosed.

20The applicant’s request for an adjournment is denied.